119 P. 994 | Okla. | 1911
This case has come to this court on several different phases (Goldsborough et al. v. Hewitt,
Since we have already held in State of Okla. ex rel.Goldsborough v. A. H. Huston, supra, that "the district court may hear and determine any matters left open by the mandate of this court," being of opinion that the subject-matter thus proposed by said heirs to be litigated was left open by the mandate in Goldsborough et al. v. Hewitt,
"In all cases any occupying claimant being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity, derived from the records of some public office, or being in quiet possession of and holding the same by deed, devise, descent, contract, bond, or agreement from and under any person claiming title as aforesaid, derived from the records of some public office * * * shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimants, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on such lands by such occupying claimant, or by the person or persons under whom he, she or they may hold the same, previous to receiving actual notice by the commencement *670 of suit on such adverse claim by which eviction may be effected."
Section 6130:
"The court rendering judgment in any case provided for by this article against an occupying claimant, shall, at the request of such occupying claimant, for the benefit of the provisions of this article, cause an entry to be made upon the journal of such request, and shall at once set a day for the trial of the right of such occupying claimant to compensation for all lasting, valuable and permanent improvements made by such occupying claimant, or those under whom he claims, upon the premises prior to the issuing of summons in the cause, and at such trial each party shall produce his evidence relating to such improvements," etc.
As the record discloses that defendant Robert Hewitt, the ancestor of petitioners, was, for years prior to and at the time of his death, in quiet possession of the homestead in controversy, claiming under deed from William H. Goldsborough, dated February 18, 1897, which was afterwards held void on suit commenced against him in the district court by said Goldsborough March 23, 1904, we are of opinion that Hewitt, on the coming down of the mandate, if living, would have had the right to invoke said act in aid of a recovery of the lasting and valuable improvements placed by him on said land between those dates; so we are further of opinion that on his death the right so to do would survive to his heirs under the express terms of said act, and that the court erred in refusing to grant the prayer of their petition and set their claim down for hearing.
The cause is therefore reversed and remanded, to be proceeded with in accordance with this opinion.
All the Justices concur. *671